CARTER, ET AL. v. COUNTY OF HANOVER, ET AL. (59944)

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
FROM THE CIRCUIT COURT OF HANOVER COUNTY

Richard H.C. Taylor, Judge
Present: All the Justices

In this appeal involving a suit between adjoining landowners,
we consider whether an easement from previous use has been
established.

BACKGROUND

The tracts of land in question were once part of an estate in
Hanover County commonly known as Courtland. In 1965, Courtland
was owned by John Worthington Whaley and Katherine Cox Whaley and
consisted of 755 acres bordered generally on the north by
Mechumps Creek and Garland Hill, an estate owned by the Carter
family,[1]and on the east by Broadneck, a
tract owned by the Commonwealth. U.S. Route 301 bisected
Courtland, but for present purposes we are concerned only with
that portion of the estate east of U.S. Route 301.

The Courtland estate was made up of a patchwork of tillable
fields, wooded areas, and marsh. The tillable fields were
connected by numerous unpaved roads running through the property
and were continuously farmed during the Whaleys’ ownership. One
such road, the "Farm Road," ran from U.S. Route 301 to
various fields and terminated in the "Sweet Field," a
16-acre tillable field set upon a high bank above a marshy
section of the Mechumps Creek border between Garland Hill and
Courtland.

In 1963, the Carter family acquired from Bruce G. Jones, Jr.
and Jones Planing Mill Corporation an 80-acre tract bounded on
the west by Garland Hill and Courtland and on the south by
Courtland and Broadneck (the Jones tract). The Jones tract was
bisected by Mechumps Creek and, thus, extended the contiguous
land of the Carter family south of Mechumps Creek and the
previous adjoining border with Courtland.

In 1965 following the death of Mr. Whaley, the Carter family
purchased a 64-acre tract of Courtland along the course of
Mechumps Creek (the 1965 tract) from Mrs. Whaley and the trustee
of Mr. Whaley’s estate. The 1965 tract was mostly marshlands, but
included four acres of the Sweet Field in a narrow strip on the
north and east sides of the field following along the top of a
steep, wooded bank above the marshlands. The 1965 tract included
a portion of the Farm Road which terminated at a former home site
on the eastern edge of the Sweet Field. However, the deed of
conveyance made no reference to an easement over the Farm Road.

Shortly after acquiring the 1965 tract, the Carter family used
the Farm Road to transport live chestnut trees to the former
homesite, where the trees were planted as part of a forestry
experiment. In 1966, the Carter family constructed an earthen dam
across Mechumps Creek in the Jones tract creating a small lake in
the marshy area below the Sweet Field. The dam has been replaced
and improved twice since its original construction, with a bridge
being added to its spillway which is able to support light
vehicles safely. Although a dry-weather road, traversable by
four-wheel drive vehicles only, was constructed from the south
side of the dam up the bank to the Sweet Field, the Carter family
occasionally used the Farm Road to reach the Sweet Field and the
adjoining property of the 1965 tract south of the small lake for
silvacultural and recreational purposes.

In 1966, Mrs. Whaley and her husband’s estate sold the
remaining 691 acres of Courtland to Richard Kennon Williams.[2]In 1979, Williams and his wife
sold the eastern 373 acres of Courtland, including the remaining
portion of the Sweet Field, to the County of Hanover. Williams
and his wife subsequently transferred most of the western portion
of Courtland to its present owner, retaining only the manor home
and a small amount of surrounding acreage.

After acquiring the eastern portion of Courtland, in order to
obtain a drainage area for a proposed landfill, the County
negotiated with the Carter family to exchange a 19-acre tract
which included the remaining portion of the Sweet Field (the 1979
tract) for the southern 20 acres of the Jones tract. With the
conclusion of this transaction, the property boundaries were set
as they remain today, except that in 1996 the County transferred
an interior portion of its property to the Pamunkey Regional Jail
Authority.[3]

Prior to the time of severance of the 1965 tract from
Courtland, the Farm Road was in use by various parties, but was
principally used by tenant farmers to move farming equipment
between the tillable fields of Courtland including the Sweet
Field. It is not disputed that after 1965 use of the Farm Road
continued by Williams’ tenant farmers for farming operations on
Courtland, and in particular to farm the balance of the Sweet
Field retained in Courtland.

Beginning in 1974, James M. Newcomb farmed various fields on
Courtland including Williams’ portion of the Sweet Field, using
the Farm Road and other roads on the property to go to and from
U.S. Route 301. Newcomb also received permission from the Carter
family, as had other tenant farmers since 1965, to farm the four
acres of the Sweet Field that was part of the 1965 tract. In
exchange, Newcomb agreed to leave some crops in the Sweet Field
unharvested in order to attract wildlife.

On January 10, 1980, the County Administrator sent a copy of
the recorded deed of exchange of the 1979 tract for the 20 acres
of the Jones tract to the Carter family. In a transmittal letter
sent with the deed, the County Administrator stated:

This letter will serve as notice from Hanover County that
you are granted reasonable access to the field which is a
portion of the land conveyed to you by the County for the
purpose of farming by Mr. Newcomb at the same time the County
acreage is farmed.

Newcomb and other tenants continued to farm the Sweet Field
and the fields in the County’s portion of Courtland until
development by the County and the Pamunkey Regional Jail
Authority eliminated much of the tillable acreage there. During
the planning of the development of the County’s portion of
Courtland, the County Operations Supervisor wrote to the Carter
family and acknowledged that the Farm Road was used "for
ingress and egress for cultivation of your fields," and
stated that proposed development "will not interfere with
the roadway that leads to the back of your property."

In 1995, the County proposed building a shooting range on the
portion of its property immediately adjoining the 1965 and 1979
tracts. The Carter family objected to the construction of the
shooting range on the ground that it would block access to the
Sweet Field by the Farm Road. On February 12, 1996, the Carter
family filed an amended bill of complaint seeking a declaration
of an easement from previous use over the Farm Road and a
temporary injunction to prohibit construction of the shooting
range.[4]The County asserted that the
prior access to the Sweet Field was not pursuant to an easement,
but that if an easement once existed, it had been terminated by
operation of law. After a hearing on the Carter family’s motion
for a temporary injunction, the chancellor found in an opinion
letter that "the evidence produced . . . raise[s]
questions as to the likeliness of [the Carter family] prevailing
on the merits." The County was directed to draft a decree
overruling the motion for temporary injunction; however, no
decree to that effect was ever entered. In April, 1996, the
County began construction of 20?foot high earthen berms as part
of the shooting range, cutting off access to the Sweet Field by
the Farm Road.

The chancellor referred the matter to a commissioner in
chancery, who filed the record and his report on July 25, 1996.
The record includes transcripts of oral testimony, deposition
testimony, and a substantial number of exhibits. The report
concludes with a finding that the Carter family established an
easement from previous use over the Farm Road to the four acres
of the Sweet Field which were a part of the 1965 tract, but that
the easement should be limited to providing access for farm
equipment.

Both parties submitted objections to the commissioner’s
report. In an opinion letter dated September 27, 1996, the
chancellor stated that he agreed with the "statement of the
law applicable in this matter . . . [and] most of the
facts relied upon [by the commissioner]." Rejecting the
ultimate finding of the commissioner and referring to the January
10, 1980 letter from the County Administrator to the Carter
family, the chancellor further stated that the previous use of
the Farm Road at that time, and presumptively at times before,
was to connect all the acreage under cultivation on Courtland.
Thus, the chancellor reasoned that when the County’s portion of
Courtland was no longer under cultivation, the Carter family no
longer had use of the Farm Road to access the Sweet Field. We
awarded the Carter family this appeal from the chancellor’s final
decree entered October 24, 1996 and incorporating the rulings
expressed in the opinion letter.

DISCUSSION

We follow the well established standard of review applicable
to appeals from judgments in equity suits wherein the chancellor
has set aside the findings of a commissioner. In such cases,
"we must review the evidence and ascertain whether, under a
correct application of the law, the evidence supports the
findings of the commissioner or the conclusions of the trial
court." Hill v. Hill, 227 Va. 569, 577, 318 S.E.2d
292, 296-97 (1984). Moreover, even though the chancellor
disapproves some or all the commissioner’s findings, "we
must, nevertheless, give due deference to the commissioner’s
findings in those areas where the commissioner saw, heard, and
evaluated the witnesses at first hand while the trial court did
not." Hurd v. Watkins, 238 Va. 643, 646, 385 S.E.2d
878, 880 (1989).

Under this standard, we conclude that the dispositive issue of
this appeal is whether the evidence supports the commissioner’s
finding of a limited easement from previous use or the
chancellor’s ruling that no such easement existed.

An easement from previous use comes into existence because
"[a]bsent express restrictions imposed by the terms of the
grant, a grantor of property conveys everything that is necessary
for the beneficial use and enjoyment of the property." Brown
v. Haley, 233 Va. 210, 218, 355 S.E.2d 563, 569 (1987). In Russakoff
v. Scruggs, 241 Va. 135, 400 S.E.2d 529, (1991), we described
how this easement arises:

While one cannot have an easement on land he owns, if,
before severance, one part of the land was used for the
benefit of another part, a "quasi-easement" exists
over the "quasi-servient" portion of the land. That
easement is conveyed by implication when the dominant tract
is severed; the grantee of the dominant tract obtains an
easement over the servient tract, based on the previous use. SeegenerallySanderlin v. Baxter, 76 Va. 299
(1882); R. Minor, [The Law of Real Property ? 99 (F. Ribble 2d
ed. 1928)].

While the extent of the easement right is determined by the
circumstances surrounding the conveyance which divides the single
ownership, the existence of the easement is established on a
showing that (1) the dominant and servient tracts originated from
a common grantor, (2) the use was in existence at the time of the
severance, and that (3) the use is apparent, continuous, and
reasonably necessary for the enjoyment of the dominant tract. Brown,
233 Va. at 219, 355 S.E.2d at 569; Fones v. Fagan, 214 Va.
87, 90-91, 196 S.E.2d 916, 919 (1973).

Russakoff, 241 Va. at 139, 400 S.E.2d at 532.

The commissioner addressed each of the conditions required to
establish an easement from previous use. The first two
conditions, that the dominant and servient tracts originated from
the same grantor and that the Farm Road was in use at the time of
severance were not seriously contested by the parties and are
amply established on the record. Thus, the third condition, that
the use was apparent, continuous, and reasonably necessary for
the enjoyment of the dominant tract, was the principal point of
contention between the parties considered by the commissioner.

The County contends that the existence of the Farm Road was
not apparent because it consisted of a meandering series of
segments connected by various tillable fields, and that access
between these segments was not necessarily fixed. The
commissioner found that "any person viewing those segments
would understand (i.e. [it] would be ‘apparent’ to the observer)
that they served as access to Route 301." This finding of
fact is supported by the evidence and, since the chancellor did
not contradict this finding in his opinion letter, we accept it
as conclusive.

Similarly, the commissioner’s finding that the use of the Farm
Road to access the Sweet Field for agricultural purposes was
continuous at all relevant times is well supported by the record,
was not contradicted by the chancellor, and, thus, will not be
disturbed on appeal.

The remaining point of contention between the parties, and the
determining factor which caused the chancellor to disapprove the
commissioner’s ultimate finding, relates to the final requirement
that the use be reasonably necessary for the enjoyment of the
dominant tract. The County asserts that, since the purchaser of
the dominant tract also owned an adjoining tract with ample
access to road frontage, the previous use of the Farm Road to
provide access to road frontage could not have been reasonably
necessary at the time of severance. The County’s position is
that, since the evidence shows that the Sweet Field was
subsequently connected to other road frontage of Garland Hill via
the dam, spillway bridge, and dry-weather road, the Carter family
had an alternate, if less convenient, method of obtaining access
from U.S. Route 301 to the 1965 tract. In making this assertion,
the County has confused the requirements for proving an easement
from previous use with those of an easement by necessity.

While it is true that both easements from previous use and
easements by necessity arise by implication, an easement by
necessity will not be found if there is another way of access,
although less convenient and which will involve some labor and
expense to develop. SeeChaiken v. Harry J. O’Meara
Tile Co., 212 Va. 510, 513, 184 S.E.2d 746, 749 (1971). As we
noted in Russakoff, the determination that an easement
from previous use is reasonably necessary to the use and
enjoyment of the dominant tract "requires a showing of need
which, by definition, may be less than that required for
establishing an easement by necessity, but must be something more
than simple convenience. We have recognized that whether this
element is established ‘generally will depend upon the
circumstances of the particular case.’ Jones v. Beavers,
221 Va. 214, 221, 269 S.E.2d 775, 779 (1980)." Russakoff,
241 Va. at 140, 400 S.E.2d at 533. Thus, we reject the County’s
contention that the existence of an alternative access is
sufficient alone to bar the finding of the easement, and we will
consider, as the commissioner did, the particular circumstances
of this case.

The commissioner found that at the time of severance, use of
the Farm Road to reach the 1965 tract was reasonably necessary
for farming the portion of the Sweet Field which was part of that
tract. The evidence supports this finding, inasmuch as at that
time there was no other way of ingress and egress to the Sweet
Field. Thus, the easement was implied at the time of severance.
The commissioner further found that the subsequent construction
of the dam, spillway bridge, and dry-weather road did not
constitute an abandonment of the easement because this means of
access was inadequate to support a continuation of the use
provided by the Farm Road.

The chancellor, while agreeing with these findings in general,
ruled that the commissioner’s definition of the "use"
as being for farming the four acres of the Sweet Field was in
error. Rather, the chancellor concluded that the use was the
farming operations on all of Courtland, of which the Sweet Field
was a part. Finding that Courtland was no longer principally used
for farming, the chancellor further concluded that the use had
ceased to be reasonably necessary and, thus, that the easement
had been extinguished. We disagree.

The commissioner correctly limited his inquiry to the
necessity of the use to the dominant estate, not to the original
common estate. If this were not the correct inquiry, then the
owner of the servient estate would be able to frustrate the right
of the dominant estate to the implied easement by altering the
use of the servient estate. Accordingly, since the record
adequately supports the commissioner’s findings that access to
the Farm Road remains reasonably necessary to farming operations
on the four acres of the Sweet Field included in the 1965 tract,
we hold that the easement remains in existence.

Finally, we address the contention of the Carter family that
the commissioner erred in limiting use of the easement to
transporting farm equipment to and from the four acres of the
Sweet Field. The Carter family asserts that the easement should
provide access to the entire 1965 tract for silvacultural and
recreational purposes, citing their own use of the Farm Road for
these purposes at various times as supporting their claim. We
disagree.

Generally, the owner of a dominant estate cannot expand the
nature of an easement from previous use by altering the use of
that easement.[5]
Nor is evidence of the use of an easement after the time of
severance sufficient to establish the nature of the use at or
prior to severance. While it may be true that at some point prior
to severance the Farm Road was used to provide access to the
undeveloped portions of the 1965 tract for purposes related to
forestry or recreation on an irregular basis, the overwhelming
weight of the evidence shows that its continuous use, and its
sole use at the time of severance, was to provide access to the
tillable acreage of the Sweet Field.

For these reasons, we will reverse the judgment of the
chancellor and enter judgment for the Carter family in accord
with the report of the commissioner. Because the chancellor

failed to grant the temporary injunction, the case will be
remanded to the trial court for a determination of the damages,
if any, to which the Carter family is entitled for the
interruption in its use of the easement.

Reversed and remanded.

FOOTNOTES:

[1]Dr. Hill Carter, Jr., one of
the plaintiffs below, was not an owner of the original Garland
Hill. However, it is not contested that at the time this suit was
commenced, Dr. Hill Carter, Sr. and Dr. Hill Carter, Jr. were
joint owners of the pertinent 64-acre tract subsequently
described herein. To avoid confusion, these parties will be
referred to here as "the Carter family."

[2]The record suggests that there
was a subsequent transfer of the property to "Courtland
Enterprises," an entity controlled by Williams, and a
further transfer from that entity to Williams and his wife. These
transactions are not relevant to the issues considered here.

[3]The present owner of the
western portion of Courtland, R. Bruce Mallett, was not a party
to the suit to establish the easement. Accordingly, the effect of
our opinion is limited to those portions of the easement which
extend over the property owned by the County and the Pamunkey
Regional Jail Authority.

[4]The Carter family also assert
that they are entitled to a broader easement under a theory of
easement by necessity. However, it was stipulated before the
commissioner that the issue to be decided was limited to the
existence of an easement from previous use. Accordingly, the
issue of an easement by necessity was not properly before the
chancellor and cannot be raised for the first time on appeal.

[5]We recognize that a hostile inconsistent use of an
implied easement may lead to the creation of a broader easement
by prescription. However, the evidence here does not show that
the silvacultural and recreational uses of the Farm Road after
1965 were sufficiently continuous to constitute a prescriptive
use, and the Carter family did not advance a theory of a
prescriptive easement.